Reasonable Doubt: collaborating with your ex will be hard, but it can be worth it

The idea of collaborating with an ex-spouse in the aftermath of your break-up, when emotions are running high, may seem absurd. But it can work to your advantage and maximize your benefits.

The bulk of family law articles published to date in our Reasonable Doubt series has focused on substantive law – that is, a party’s legal rights and obligations arising on the breakdown of a relationship. It is important to keep in mind, however, that there are various processes by which one can resolve those disputes. While litigation is the most obvious, various means of alternate dispute resolution can be effective too. Collaborative family practice is one of those means.

In order for the process to get under way, each party retains legal counsel trained in collaborative practice. They review and sign off on a contract which sets out the various principles that they intend to abide by in negotiating a resolution to their dispute. Those principles could be to agree to a certain level of confidentiality, or that discussions as part of the negotiation cannot be used in any subsequent litigation should the process break down.

The parties also agree to consider various options to resolve their dispute and to be respectful and constructive in their dealings with one another during the process. Neither party is permitted to threaten litigation as a means of bullying or intimidating the other side into a settlement. The contract recognizes that in the event that the process breaks down and litigation ensues, both parties are obliged to obtain fresh legal counsel. This last point is a fundamental principle of collaborative practice which forces both parties and counsel to focus on achieving a resolution, as the consequence of failure means starting over from scratch. As well, solicitor and client privilege, the most fundamental of legal tenants is, to a large extent, waived within the confines of the process such that it would be inappropriate for collaborative counsel to litigate the matter.

Once the contract has been signed, and counsel is confident that both parties understand the process, each is asked to identify the issues that need to be addressed, and what requires urgent attention. Issues are reviewed, and where additional information or input from other professionals is required, such as reports or valuations, this is noted and arrangements for obtaining them are made. Minutes of the meetings are taken and disseminated so that there is no misunderstanding about what was discussed and agreed upon and where responsibility lies for obtaining same. A benefit to the process is that neutral third parties, such as financial planners or mental health professionals, can be brought in to assist the parties in coming up with a financial solution that accommodates their needs as a whole, or assist them in inter-family communication in a way that would otherwise be impossible. The reality is that while lawyers are meant to provide opinions on the law, we are not generally speaking trained in providing financial or mental health advice.

The process is very much a team approach. There are at a minimum, four minds working on any given problem, at any given time. There is less miscommunication in collaborative practice than more traditional negotiation. Everyone is sitting in the same room, hearing the same conversation at the same time, as opposed to it being passed from party to counsel, to counsel to opposing party, over a series of days or sometimes weeks. It’s efficient, which in my experience is often lost in other processes. At the end of each meeting, the next meeting is scheduled at a time convenient to all. There’s no need to wait on the court’s schedule.

The process is private, too, as opposed to litigation, which occurs in a public forum.

I was once told that any file, no matter how dysfunctional the parties, could be resolved by collaborative practice. I don’t believe it. It is not the panacea for all families, or all problems. Sometimes, matters need to be litigated. There are times where talking is no more than metaphorically spinning one’s wheels in mud and becoming hopelessly more entrenched. In such cases, the matter should be litigated with a judge handing down a solution for the parties, and then move on.

But when collaborative practice works, it is satisfying for both parties and counsel alike. According to my colleague Margaret Opatovsky, “collaborative practice can be empowering for parties; it provides them with autonomy over decisions which will impact them in both the short and long term.” I agree wholeheartedly with that conclusion. When it works, it allows each party to have direct input into decisions which impact them, as opposed to having that input filtered through the varying capabilities of their legal counsel. It allows parties the right to approve decisions affecting them, as opposed to handing control over same to the varying capabilities of a judge who knows neither them nor their children.

James Stengel is a Family Law Lawyer with Houghton, Sloniowski & Stengel. Reasonable Doubtappears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Houghton, Sloniowski & Stengel.